The Nairobi Law Monthly just published my article on Kenya’s use of force in its crackdown on Al-Shabaab and efforts to secure the borders. I argue that the use of force in self-defense against Al-Shabaab, a non-state actor, does not have proper legal grounding under Article 51 of the Charter of the United Nations and indeed under customary international law. Nevertheless, if Kenya now has a proper legal basis in proceeding against the group, its use of force is still governed by international law. Such use of force must be necessary and proportionate.

The standard the court set required that the “‘national investigation must [. . .] cover the same conduct in respect of persons at the same level in the hierarchy being investigated by the ICC’”. Against this standard, Pre-Trial Chamber II determined that the applications do not provide concrete evidence of ongoing proceedings before national judges, against the same persons suspected of committing crimes falling under the ICC’s jurisdiction. While information was provided to establish that instructions were given to investigate, nothing in the record establishes any “current investigative steps” that have been taken. Pre-Trial Chamber II also considered that the Government of Kenya failed to provide the Chamber with any information as to the conduct, crimes or the incidents for which the suspects are being investigated or questioned. The Chamber concluded that “there remains a situation of inactivity and, consequently, that it cannot but determine that the case is admissible”.

The Government of Kenya may, within five days, file an appeal against these decisions, in accordance with article 82 (1)(a) of the Rome Statute and rule 154.1 of the Rules and Procedure and Evidence. It has already expressed its intention to do so.

On 20 April 2011, the ICC denied Luis Moreno-Ocampo’s effort to conceal evidence against the Ocampo Six until he had had enough time to study it. See instructive discussion here on the number of days Ocampo claimed were necessary. See also. On 31 March 2011, the Kenyan Government had filed an application to have the case ruled inadmissible in accordance with Article 19 of the ICC Statute. At this time, no determination has been made on that application. Moreno-Ocampo, therefore, argued that disclosure of evidence not be required until after final determination on the Article 19 application pursuant to the language of the same statute.

The Court disagreed. It noted that the statute only required the suspension of “investigations” by the prosecutor, not the “prosecution” itself. “The court rejected the application and ordered the prosecutor to disclose to the defence any evidence on which he intends to rely for the purposes of the confirmation of charges hearing,” Disclosure was, therefore, required in accordance with the rules of evidence. See ruling here.

The judge then set forth a schedule for disclosure:

Evidence collected by the Prosecutor before 15 December 2010: Friday, 3 June 2011

Evidence collected between 15 December 2010 and 31 March 2011: Friday, 24 June 2011.

Evidence collected after the filing of the Admissibility Challenge: Friday, 29 July 2011

Any exculpatory evidence was ordered to be provided to the defense for inspection as soon as practicable.

As expected, Kenya’s bid to defer the two ICC cases at the Security Council failed following a meeting on Friday April 8, 2011. While the Security Council did not affirmatively reject the request, the impasse within the Council brought the discussion to an end. Council President Nestor Osorio of Colombia told reporters following closed-door consultations “After full consideration, the members of the Security Council did not agree on the matter.” See story here.

At least the Council met to consider this request, unlike the one that Sudan through the African Union sought with reference to President Bashir. The lack of engagement with Sudan’s deferral request is still an outstanding matter as noted in an expert African study (by Dapo Akande, Max Du Plessis and Charles Jalloh) on that question available here.

In a filing before the Pre-Trial Chamber II dated 31st March, 2011, Kenya argues that the two Kenyan cases are inadmissible. And in a unanimous decision today, the Pre-Trial Chamber ruled that the application on inadmissibility would not be heard during appearance of the O’Campo six in the Hague this week, (for confirmation of the charges), since although the Kenyan government is party to the Article 19 admissibility proceedings, it was not a party to the criminal proceedings against the six supects. (See story here) The Pre-Trial Chamber decided that the Prosecutor, the Defense and the Victims file responses to the government’s inadmissibility motion before April 28th at 4.00 p.m.

In the meantime, the Security Council has announced today that it will consider Kenya’s request for a deferral will be considered this month. (See story here) That announcement came after Colombia took over the Council’s rotating Presidency this month. Like the inadmissibility motion, the deferral request argues that the government is proceeding with its reform agenda so that a local tribunal can be put in place. The Security Council’s deferral discussions is scheduled for Friday April 8, 2011.

Now that the Pre-Trial Chamber has set the end of April for parties to file submissions on the inadmissibility motion, it will be clear by then what the decision of the Security Council will be when the inadmissibility motion comes up for hearing.

The primary argument of the government’s inadmissibility case is that it has not given up its right to investigate the O’Campo six. It argues that it plans to investigate post election violence offenders based on the following timetable pursuant to the ongoing and contentious implementation of a new Constitution:

End of July 2011 – report on investigations under a new Deputy Public Prosecutor and how they extend up to the highest levels. (Note the application deadline for a new Prosecutor has just closed and once the Judicial Service Commission makes its decision, the President will then make the appointment. End of July 2011 is an ambitious date to expect a report from a newly appointed Deputy Public Prosecutor under these circumstances)

End of August 2011 – report on progress made with investigations to the highest levels, and on adoption of three Police Bills and reorganization of the Police Services, including the appointment of the new Inspector General. (Again end of August 2011 is ambitious since the Bills mentioned are not ready. Further, the government’s case hangs on the theory that it needs time to implement these important changes. Yet, nothing in the inadmissibility motion filed specifically mentions any of the O’Campo six. More damning is the fact that the 2008 post election violence was the fourth major post election violence cycle with respect to which no credible investigations or prosecutions of those most responsible has/was undertaken. It is merely theoretical that two of the leading contenders for the Presidency in 2012 (Kenyatta and Ruto) will simply become subject to an investigation under President Kibaki’s government which has effectively given its imprimatur to Kenyatta and Ruto as its preferred successors).

End of September 2011 – report on progress made with investigations and readiness for trials in light of judicial reforms. (Again, this is a theoretical possibility which presumes a deeply divided government will have enacted a credible domestic tribunal to conduct such trials).

The government’s inadmissibility case is built on conjecture and speculation – in fact a wish list of the reform agenda. If this reform agenda is followed without the usual start-stop style of the heavily divided coalition government, it will need to be financed. The Minister for Finance is Uhuru Kenyatta, one of the O’Campo six. Going by his reluctance to finance the Committee of Experts which oversaw the birth of the new Constitution and recent suspect appropriations to shore up the defense of the O’Campo six at the Hague, there is little to hope for that these new Constitutional offices will be funded to be able to effectively conduct their roles independently and without being manipulated to serve the succession politics that has already reached feverish proportions (precipitated by the Hague process and the O’Campo six) in the country.

The Kibaki side of the coalition government is doing everything it can to convince the Kenyan public about the inappropriateness and inadmissibility of the trials, while Prime Minister Raila’s side has done just the opposite – a factor that does not augur well for the government’s argument on both inadmissibility and deferral.

With regard to Kenya’s inadmissibility argument, as I have noted in a previous post the Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui in a Judgment on Appeal Against the Oral Decision of Trial Chamber II of 12 June 2008 on Admissibility of the Case held that under “Article 17(1)(a) and (b) of the Statute, the initial questions to ask are (1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction decided not to prosecute the person concerned. It is only when the answers to these questions are in the affirmative that one has to look to the second halves of sub-paragraphs (a) and (b) and to examine the question of unwillingness and inability.” Para. 78

The motion filed by Kenya simply asserts that “it has managed to put in place necessary reforms to investigate and try all cases at whatever level arising from the post-election violence,” para. 8. That does not sound like there is an ongoing investigation. Further, the government acknowledges that there is no domestic tribunal yet (even while asserting its willingness to do so) and making the rather untrue assertion that the ICC process is not allowing “Kenya to finish the task and to investigate and try those at all levels, particularly those at the top of political, military and administrative hierarchies, who merit being tried,” id. at Para. 10. Thus while the application makes a whole lot of the need to respect the sovereignty and integrity of national criminal justice systems and that there is no evidence that Kenya is shielding anyone or engaged in an unjustified delay, there is simply nothing to show an investigations or proceedings are underway (or that all these reforms are not really being undertaken as smokescreen to shield those most responsible from the Hague).

The motion seeks additional time and accommodation to ensure that there is ‘reconciliation, trust and cooperation’ within the coalition government so that it can effectively undertake the reforms necessary to set up credible investigation and prosecution authorities – much like other countries that have experienced similar turmoil like Kenya and which the Prosecutor’s Office has given generous timeframes to undertake investigations and prosecutions. Colombia is mentioned as one such country – see in particular Paras. 18 and 40. Incidentally the country currently chairing the Security Council this month and which has decided to have Kenya’s deferral motion discussed).

In the final analysis, while the reforms underway in Kenya are unlikely to have yielded the kind of dividends that meet the test laid down in the Appeals Chamber in The Prosecutor v Germain Katanga and Mathieu Chui. This is particularly unlikely by September 2011. September 2011 is too short a time frame for these reforms to have gained the kind traction necessary to undertake investigations against some of the most powerful currently serving politicians in the country. The Hague process has already triggered the high stakes 2012 Presidential race into high gear – not the kind of political climate for national trials against some of the leading contenders for high office in Kenya. Even bracketing out the political farce surrounding the Kibaki succession in 2012, there are too many other uncertainties about the execution of the reform agenda – not least of which is that one of the O’Campo suspects holds the purse strings to its successful implementation.

In the best case scenario, one could argue Kenya should be given the benefit of the doubt – Kenya does really intend to implement all these reforms. Such a good faith case may in fact exist – but it is simply that, a theoretical possibility, a wish-list and a good one at that. There is also the reality on the ground and that does not measure up very well in favor of inadmissibility.

Today April 1st 2010, Judge Ekaterina Trendafilova rejected the Prosecutor’s Interlocutory Appeal from the March 8, 2011 decision declining to issue summonses with respect to allegations of crimes against humanity that occurred in Kisumu town, Kibera in Nairobi, Naivasha and Nakuru during post election violence in early 2008.

Judge Trendafilova found that the Prosecutor failed “to plead that the conduct of the Police [shootings etc] was part of a State policy.” Further the Judge found that the Prosecutor had failed to provide “reasonable grounds to attribute these events to the suspects” and as such the Chamber could not have proceeded to analyze those events to establish if they qualified as crimes against humanity under the Rome Statute. Para. 13.

Judge Trendafilova noted that simply because Muthaura, (Head of Civil service) Kenyatta (cabinet minister) and/or Ali (Commissioner of Police) were State agents was insufficient under the Statute to charge them “with establishing, participating in or contributing to a policy,” since they “can only be charged with the crimes committed in the context of a widespread and systematic attack against the civilian population carried out pursuant to or in furtherance of a State or organizational policy” Para 18. The Judge emphasized that knowledge on the part of the person charged that s/he was ‘part of a widespread or systematic attack against a civilian population in furtherance of a State or organizational policy’ was what was important – not that the policy pursuant to which the attack was carried out was attributable to such a person. Id.

The Judge rejected the Prosecutor’s argument that the Pre-Trial Chamber was effectively acquiescing to impunity by failing to reinstate those charges. The Judge noted that the Kenyatta, Ali and Muthaura had already been issued summonses with reference to commission of crimes in Naivasha and Nakuru for “using their authority over the Kenyan Police and thus by virtue of their position with the State apparatus” as well as with regard to systematic attacks “carried out pursuant to the organizational policy of the Mungiki,” at Para. 19.

The Judge further dismissed the Prosecutor’s argument that his discretion had been undermined and the fairness of the trial impugned by the Chamber’s re-characterization of acts of forcible circumcision as ‘inhuman acts’ rather than as ‘other forms of sexual violence.” The Judge observed that with ‘sufficient evidence to meet the evidentiary standard as required by article 61(7) of the Statute,” it was still open for the Prosecutor to bring the charges as he would have wanted.

Implications

The Prosecutor has lost this initial skirmish. This appeal and its dismissal clearly delineate some of the major legal issues that the defense is likely to raise with regard to related charges once confirmed by the Pre-Trial Chamber in the next week particularly in this case involving suspects who were officials in the Kenyan government. So whereas in the other Kenyan case, issues involving non-state actors loom large, here the Judge strongly suggested that the Pre-Trial Chamber is uncomfortable with concluding that the mere involvement of State actors in crimes against humanity necessarily means that there was a State policy.

Prior to passing a resolution authorizing the use of force against Libya with unprecedented speed on March 17, 2011, the Security Council had on the previous day removed from its schedule and postponed indefinitely a consultation on Kenya’s deferral bid with no explanation. See story here.

Libya which was one of Kenya’s biggest backers in its deferral bid now faces the Security Council’s harshest measures – the collective use of force to protect Libyan citizens from their government pursuant to the Council’s authority under Chapter VII of the UN Charter. See story here.

In the meantime, the Chinese Ambassador to Kenya has continued to reiterate China’s support for Kenya’s deferral bid. See story here.

The split within the Kenyan government about whether to seek deferral or not continues. Prime Minister Raila Odinga and members of the Orange Democratic Movement allied to him continue to support the ICC proceeding with the two cases while President Kibaki’s wing of the government continues to seek deferral. President Kibaki has promised to challenge the admissibility and jurisdiction of the ICC. Conflicting letters have been sent to both the ICC and the Security Council by both sides of the government, a scenario that makes it hard to demonstrate Kenya’s seriousness in its deferral bid. See here.

Three more updates on O’Campo before looking briefly as Judge Kaul’s dissent: First, he has appealed against Trial Chamber II’s dismissal of some of the charges he had included in his application for summonses. See appeal here.

Second, he is seeking one of the suspects, Francis Muthaura to stop chairing a top national security committee, (National Advisory Security Committee) so that he cannot interfere with witnesses or evidence collection. See story here.

Third, the dates for the appearance of the two sets of suspects are now April 7th for Case 1 and April 8th for Case 2. See story here.

Finally, Judge Kaul’s dissenting opinion in O’Campo’s application for summonses has finally been released. You can see it here.

The crux of Judge Kaul’s case is that crimes against humanity require an ‘organizational policy’ that approximates that of a State. In his view, non-state actors cannot be considered approximations of a state for purposes of crimes against humanity unless they have certain characteristics:

Those characteristics eventually turn the private ‘organization’ into an entity which may act like a State or has quasi-State abilities. These characteristics could involve the following: (a) a collectivity of persons; (b) which was established and acts for a common purpose; (c) over a prolonged period of time; (d) which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level; (e) with the capacity to impose the policy on its members and to sanction them; and (f) which has the capacity and means available to attack any civilian population on a large scale.

Further:

non-state actors which…are not able to carry out a policy of this nature, such as groups of organized crime, a mob, groups of (armed) civilians or criminal gangs..would generally fall outside the scope of article 7(2)(a) of the Statute. To give a concrete example, violence-prone groups of persons formed on an ad hoc basis, randomly, spontaneously, for a passing occasion, with fluctuating membership and without a structure and level to set up a policy are not within the ambit of the Statute, even if they engage in numerous serious and organized crimes. Further elements are needed for a private entity to reach the level of an ‘organization’ within the meaning of article 7 of the Statute. For it is not the cruelty or mass victimization that turns a crime into a delictum iuris gentium but the constitutive contextual elements in which the act is embedded.

Judge Kaul’s dissent raises important definitional issues that will have to be dealt with as these Kenyan cases commence shortly.

Rejecting Mohammed Hussein Ali's application to participate in the pre-trial proceedings with the understanding that he would be permitted to make oral and written observations to the prosecutor. The court determined that such communication was not within the rules.

Determining that the five requests made by the nine applicants were without merit where the applicants sought various protections from prosecution in return for testimony, or in the alternative, a suspension of the prosecution process.